OF THE CASE
This matter is an appeal by the South Carolina Department of
Motor Vehicles (“Department”) from a Final Order and Decision of the South
Carolina Division of Motor Vehicle Hearings (“DMVH”). The DMVH’s Final Order
and Decision was issued following an administrative hearing held pursuant to
S.C. Code Ann. § 56-5-2951(B)(2) (Supp. 2007). The Department claims that the
DMVH erroneously rescinded the driver’s license suspension of Respondent
Darrell Eugene Lark (“Lark”). The Administrative Law Court (“ALC” or “Court”)
has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660
(Supp. 2007). Upon consideration of the briefs, the DMVH’s Final Order and
Decision is reversed.
December 23, 2006, Trooper Joseph Adam Hamilton of the South Carolina Highway
Patrol was on routing patrol in Anderson County when he observed a vehicle on
Highway 86 exceeding the posted speed limit. He followed the vehicle and
attempted to initiate a traffic stop and the vehicle turned onto a residential
area without using the turn signal and finally came to a stop in a residential
yard. Respondent was identified as the driver. Trooper Hamilton asked the
Respondent what was going on and whether he had been drinking. Respondent
stated that he had too much to drink. Trooper Hamilton did not administer any
field sobriety tests to Respondent and placed the Respondent under arrest for
driving under the influence based on visual indicators. He then transported the
Respondent to the Anderson County Detention Center for a DataMaster test. At
the DataMaster site, the Respondent was read his Rights (Advisement of Implied
Consent Rights) and asked to take the breath test. The Respondent refused. Because
the solution had expired in the DataMaster machine, Trooper Hamilton changed
the solution and got the DataMaster machine operational. Trooper Hamilton then gave the Respondent a copy of the Advisement of Implied Consent Rights in
writing. The Respondent read the Advisement of Implied Consent Rights and then
stated that he wanted to take the test. Trooper Hamilton did not offer the
breath test to the Respondent. Trooper Hamilton’s decision was based on the
fact that the Respondent had already refused the test.
December 23, 2006, Respondent was given a written Notice of Suspension of his
driver’s license for refusing to submit to the breath test and was charged with
a violation of SC Code Ann 56-5-2950. After Respondent received a Notice of
Suspension from law enforcement, DMV suspended Lark’s driver’s license for
period of ninety days in accordance with state law. Lark then requested an
February 5, 2007, Hearing Officer Tracy G. Holland convened the hearing.
Trooper Hamilton appeared and testified. Respondent did not appear, but was
represented by counsel At the close of the hearing, counsel for Respondent
moved to dismiss based upon grounds that the arrest was unlawful and that
Respondent did not actually refuse the test. Hearing Officer Holland
subsequently issued an order rescinding Lark’s suspension on the following
I find and conclude
that the Respondent was not fairly given an opportunity to submit to a breath
test. Based on the series of events I find that pursuant to the testimony the Respondent’s
request to take the breath test was reasonable and made in a timely manner for
the Officer to administer the breath test to him and he was not afforded that opportunity.
The Officer’s testimony was that he could have given the Respondent an
opportunity to give a breath sample but he chose not to because the Respondent
had refused after being read the Advisement of Implied consent rights. The
Officer had to change the DataMaster machines solution and make the machine
operational. During the time the Respondent was given a copy of his Advisement
of Implied Consent Rights to read which is required by statute. After reading
his Advisement of Implied Consent Rights, the Respondent asked to give a breath
sample. Once the DataMaster machine was operational, the officer did not
acknowledge the Respondent’s request to submit to the breath test.
The Department now appeals.
the Hearing Officer err when she determined that the law enforcement officer
was required to administer the DataMaster test after the Respondent had
the Hearing Officer err by concluding that the Department failed to meet its
burden of proof with respect to demonstrating that Lark was given the Implied
Consent Advisement in writing prior to the refusal?
the Hearing Officer err in holding that the Respondent was not fairly given an
opportunity to submit to a breath test?
STANDARD OF REVIEW
DMVH is authorized by law to determine contested cases arising from the
Department. See S.C. Code Ann. § 1-23-660 (Supp. 2006). Therefore, the
DMVH is an “agency” under the Administrative Procedures Act (“APA”). See S.C. Code Ann. § 1-23-310(2) (2005). As such, the APA’s standard of review
governs appeals from decisions of the DMVH. See S.C. Code Ann. §
1-23-380 (Supp. 2006); see also Byerly Hosp. v. S.C. State Health & Human Servs. Fin. Comm’n, 319 S.C. 225, 229, 460 S.E.2d 383, 385
(1995). The standard used by appellate bodies, including the ALC, to review
agency decisions is provided by S.C. Code Ann. §1-23-380(A)(5) (Supp. 2006).
This section provides:
The court may not
substitute its judgment for the judgment of the agency as to the weight of the
evidence on questions of fact. The court may affirm the decision of the agency
or remand the case for further proceedings. The court may reverse or modify
the decision [of the agency] if substantial rights of the appellant have been
prejudiced because the administrative findings, inferences, conclusions, or
violation of constitutional or statutory provisions;
excess of the statutory authority of the agency;
upon unlawful procedure;
by other error of law;
erroneous in view of the reliable, probative, and substantial evidence on the
whole record; or
or capricious or characterized by abuse of discretion or clearly unwarranted
exercise of discretion.
S.C. Code Ann. §
1-23-380(A)(5) (Supp. 2007).
decision is supported by “substantial evidence” when the record as a whole
allows reasonable minds to reach the same conclusion reached by the agency. Bilton
v. Best Western Royal Motor Lodge, 282 S.C. 634, 641, 321 S.E.2d 63, 68
(Ct. App. 1984). A decision will not be set aside simply because reasonable
minds may differ on the judgment. Lark v. Bi-Lo, Inc., 276 S.C. 130,
136, 276 S.E.2d 304, 307 (1981). The fact that the record, when considered as
a whole, presents the possibility of drawing two inconsistent conclusions from
the evidence does not prevent the agency’s findings from being supported by
substantial evidence. Waters v. S.C. Land Resources Conservation Comm’n,
321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996); Grant v. S.C. Coastal Council,
319 S.C. 348, 353, 461 S.E.2d 388, 391 (1995).
applying the substantial evidence rule, the factual findings of the
administrative agency are presumed to be correct. Rodney v. Michelin Tire
Co., 320 S.C. 515, 519, 466 S.E.2d 357, 359 (1996) (citing Kearse
v. State Health and Human Servs. Fin. Comm’n, 318 S.C. 198, 200, 456 S.E.2d
892, 893 (1995)). The party challenging an agency action has the burden of
proving convincingly that the agency’s decision is unsupported by substantial
evidence. Waters, 321 S.C. at 226, 467 S.E.2d at 917.
- The Hearing Officer erred
when she determined that the Law Enforcement Officer was required to
administer the DataMaster test after the respondent had initially refused.
contains substantial evidence that Respondent refused testing after he was
informed orally and in writing of his implied consent rights. Once the refusal
occurs, the officer is not required to administer the test even if the driver
changes his mind. See Leviner v. SC dept of Highways and Public Transportation,
313 S.C.409, 438 S.E.2d 246 (1993). In Leviner the motorist refused the
test after the Breathalyzer operator orally informed him that his license would
be suspended for ninety days if he refused. Id. At 247, 438 S.E.2d at
410. The Supreme Court rejected the minority line of cases that would allow a
subsequent consent to cure an initial refusal under this reasoning:
studied the minority and majority views, we adopt the bright line rule. One
immediate purpose of the implied consent statute is to obtain the best evidence
of a driver's blood alcohol content at the time when the arresting officer
reasonably believes him to be driving under the influence. Schroeder v. State, 105 Nev. 179, 182, 772 P.2d
1278, 1280 (1989) (per curiam). The bright line rule alleviates the
concern that because the reliability of the test diminishes with the passage of
time, allowing arrestees to delay their consent would enable them to manipulate
their test results. Id. at 182, 772 P.2d at 1280. Additionally, it is unreasonable to expect an arresting officer to consider
a refusal as conditional so that he must remain near the arrested person for an
extended period of time. The arresting officer would be required to forsake
other duties to arrange for a belated test that the motorist had already
refused after receiving warnings of the consequences of his noncompliance. Id. at 182, 772 P.2d at 1280.
Based upon the
Supreme Court’s decision in Leviner, the Hearing Officer erred in
determining that Officer Hamilton was required to administer the test after the
initial refusal. Therefore, the Hearing Officer’s decision is reversed.
2. The Hearing
Officer erred in holding that there was no substantial evidence that the law
enforcement officer had provided the implied consent advisement in writing to the
respondent prior to the refusal.
of Applicable Law
license to operate a motor vehicle upon the public highways of this State is
not a right, but a mere privilege that is subject to reasonable regulations in
the interests of public safety and welfare. State v. Newton, 274 S.C.
287, 294, 262 S.E.2d 906, 910 (1980); State v. Kerr, 330 S.C. 132, 149,
498 S.E.2d 212, 220-21 (Ct. App. 1998). This privilege is always subject to
revocation or suspension for any cause relating to public safety. S.C. State Hwy. Dep’t v. Harbin, 226 S.C. 585, 595, 86 S.E.2d 466, 470 (1955).
However, it cannot be revoked arbitrarily or capriciously. Id.
with these principles, the Legislature enacted S.C. Code Ann. § 56-5-2950 (Supp.
2004) and S.C. Code Ann. § 56-5-2951 (Supp. 2004). Section 56-5-2950 declares
that a motorist arrested for DUI implicitly consents to a chemical test of his
breath, blood or urine for the purpose of determining the presence of alcohol
or drugs, and it requires that, at the direction of the arresting officer, a
breath test be administered to a motorist so arrested. S.C. Code Ann. §
56-5-2950(a) (Supp. 2004).
However, Section 56-5-2950 also provides that, before any type of chemical test
is administered, the motorist must be informed in writing that:
(1) he does not
have to take the test or give the samples, but that his privilege to drive must
be suspended or denied for at least ninety days if he refuses to submit to the
tests and that his refusal may be used against him in court; (2) his privilege
to drive must be suspended for at least thirty days if he takes the tests or
gives the samples and has an alcohol concentration of fifteen one-hundredths of
one percent or more; (3) he has the right to have a qualified person of his own
choosing conduct additional independent tests at his expense; (4) he has the
right to request an administrative hearing within thirty days of the issuance
of the notice of suspension; and (5) if he does not request an administrative
hearing or if his suspension is upheld at the administrative hearing, he must
enroll in an Alcohol and Drug Safety Action Program.
S.C. Code Ann.
§ 56-5-2950(a) (Supp. 2007).
56-5-2951, in turn, mandates that the driver’s license of a motorist who
refuses to submit to a test required by Section 56-5-2950 be immediately suspended. See S.C. Code Ann. § 56-5-2951(A) (Supp. 2007). However,
Section 56-5-2951 also grants motorists the right to request an administrative
hearing to challenge such suspensions. S.C. Code Ann. § 56-5-2951(B)(2) (Supp.
2004). If such a hearing is requested, the scope of the hearing must be
limited to whether the motorist: (1) was lawfully arrested or detained; (2) was
advised in writing of the rights enumerated in Section 56-5-2950; and (3)
refused to submit to a test pursuant to Section 56-5-2950. S.C. Code Ann. §
56-5-2951(F) (Supp. 2004); S.C. Dep’t of Motor Vehicles v. Nelson, 364
S.C. 514, 526, 613 S.E.2d 544, 550 (Ct. App. 2005).
Consent Rights Advisement
56-5-2950 is widely called the “implied consent” statute, and the rights set forth in Section 56-5-2950 are commonly referred to as
“implied consent” rights.
However, according to SLED Implied Consent Policy 8.12.5(D), there are actually eight different situations in which an “implied consent”
test can be requested, and SLED has drafted a separate advisement for each
different situation. SLED has named these eight advisements as follows: (1)
DUI Advisement; (2) Felony DUI Advisement; (3) Commercial Driver’s License
Advisement; (4) Zero Tolerance Advisement; (5) Boating Under the Influence
(“BUI”) Advisement; (6) BUI Involving Death, Bodily Injury, or Property Damage
Advisement; (7) Flying Under the Influence (“FUI”) Advisement; and (8) Shooting
Under the Influence (“SUI”) Advisement. SLED Implied Consent Policy
8.12.5(D). Of these eight different advisements, it is the DUI Advisement that
sets forth the rights enumerated in Section 56-5-2950. See Ronnie M. Cole
& James B. Huff, Handling Traffic Cases in South Carolina 341
(Candice Koopman Lockman ed., 4th ed. 2005) (setting forth copy of DUI
“In Writing” Requirement
Department argues that the DMVH hearing officer erred by concluding that the Department
failed to meet its burden of proof with respect to demonstrating that Lark was
given the implied consent advisement in writing. I agree.
the hearing, Officer Hamilton provided the following testimony:
I transported him
to the Anderson County Detention Center where he was offered a Breathalyzer
test and he was informed in writing of his rights. He was asked to take the
test and then he refused the test. Subsequently, I issued a Notice of
Suspension for his driver’s license.
This testimony was not contradicted. Moreover, in her Findings of Fact, the
hearing officer made the following finding:
At the Datamaster
site, the Respondent was read his Rights and asked to take the breath
test…Trooper Hamilton gave the Respondent a copy of the advisement of Implied
Consent rights in writing.
light of the foregoing, the hearing officer’s conclusion that the Department
failed to sufficiently prove that Lark was given the implied consent advisement
in writing is both odd and erroneous. While it is true that a tribunal does
not always have to accept uncontradicted evidence as establishing the truth,
the same should be accepted unless there is reason for disbelief. Elwood
Constr. Co. v. Richards, 265 S.C. 228, 234, 217 S.E.2d 769, 771 (1975). In
this case, the record discloses no reason to disbelieve Officer Hamilton’s
testimony. Therefore, Officer Hamilton’s testimony alone was sufficient to
establish that Lark was given the Implied Consent Advisement in writing. See Cheatham v. Gregory, 313 S.E.2d 368, 370 (Va. 1984) (“A trier of fact
must determine the weight of the testimony and the credibility of witnesses,
but may not arbitrarily disregard uncontradicted evidence of unimpeached
witnesses which is not inherently incredible and not inconsistent with facts in
the record . . .”); see also Mackey, 443 U.S. at 14 (opining that
“the risk of erroneous observation or deliberate misrepresentation of the facts
by the reporting officer in the ordinary case seems insubstantial”).
Hearing Officer erred in holding that the Respondent was not fairly given an
opportunity to submit to a breath test when evidence established that the Respondent
was read his advisement prior to refusal and there was no evidence that he was
prejudiced by any failure to provide the advisement prior to refusal.
Respondent waived his right to testify and did not
introduce any evidence that he had a different understanding of the advisement
between when it was read to him and when it was given to him in writing. Thus,
there was no prejudice arising from any alleged failure to provide the
Advisement in writing prior to his refusal, nor does there appear to be
anything in the record by which prejudice may be inferred. Even if Trooper Hamilton
had failed to testify that he gave Respondent a copy of the Advisement prior to
an offer to submit a breath sample, that would not require rescission of the
mandatory suspension. The South Carolina Court of Appeals concluded that
Supreme Court precedent dictates that “a violation of Section 56-5-2950 without
resulting prejudice will not lead to a suppression of the evidence obtained...
ie. the motorists’ refusal to submit to a DataMaster test. Taylor v. SC
Dept. of Motor Vehicles, 386 S.C. 33, 627 S.E.2d 751 (Ct. App. 2006) Citing State v. Huntley, 249 S.C. 1, 562 S.E.2d 472 (2002) (emphasis added).
In this case, Trooper Hamilton, the only witness at the
hearing, testified that he read the Implied Consent Advisement to the Respondent.
There was no testimony by the Respondent that he did not understand the
advisement as read to him. There was also no testimony or other evidence that
the written disclosure was not given to him. Therefore, there are simply no
grounds upon which to rescind Respondent’s mandatory suspension.
is hereby ordered that the DMVH’s Final Order and Decision is REVERSED.
AND IT IS SO ORDERED.
October 1, 2008
Columbia, South Carolina